Hidden, Confusing Arbitration Clause Signed without Agency Is Unenforceable

September 6, 2019 | Aging Services Risk Management


In a lawsuit stemming from the death of a short-stay nursing home patient, allegedly from pressure injuries and gangrene, the Maryland Court of Special Appeals has found that an arbitration clause contained in an admissions contract was unenforceable. The patient's daughter did not have actual or apparent agency to admit the patient, and the arbitration clause was both procedurally and substantively unconscionable, the appellate court held. In so ruling, the appellate court reversed the decision of the trial court regarding the plaintiffs' claims for survival and remanded the case for further proceedings, assessing the costs of the appeal to the nursing home defendants.

The day before the patient was admitted, his daughter signed an admission agreement on his behalf, crossing out the word "Resident" and writing the word "agent" below it. The admission agreement contained a clause that required all disputes arising from the patient's care or treatment to be submitted to a mediator and, if mediation failed, for arbitration. Allegedly as a result of inadequate toileting and poor catheter and skin care, the patient developed pressure injuries and penile necrosis. The patient died sometime...

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